Elements of a valid contract essays
What chiefly influenced the court was that poussard's illness was a serious one of uncertain duration and the defendants could not put off the opening night until she recovered.
Vitiating Elements of Contract as a Source of Contractual Validity
The obligation to perform from the first night was a condition of the contract. Failure to carry out this term entitled the producers to repudiate poussard's contract. Warranties are minor terms of a contract which are not central to the existence of the contract. If a warranty is breached the innocent party may claim damages but cannot end the contract: in Bettini v Gye QBD case Bettini agreed by contract to perform as an opera singer for a three month period.
He became ill and missed 6 days of rehearsals. The employer sacked him and replaced him with another opera singer. The court Held that, Bettini was in breach of warranty and therefore the employer was not entitled to end the contract. Missing the rehearsals did not go to the root of the contract. Evaluate the effect of different term in given contracts. It introduced the concept of in nominate terms, between "warranties" and "conditions".
Diplock LJ emphasised that some terms could lead to either the right to terminate a contract as a remedy, or to the mere entitlement to damages or no right to terminate. What mattered was not whether you call a particular contract term a "warranty" or a "condition" but how serious the breach of the term was. The meaning of the term "seaworthiness" has a very broad meaning ranging from trivial defects like a missing life preserver or a major flaw that would sink the ship. Accordingly, it is impossible to determine ahead of time what type of term it is.
Thus, the type of breach must be determined by the judges. In McFadden v Blue Star Lines  1 KB it was stated that, to be seaworthy, a vessel must have the degree of fitness that an ordinarily careful and prudent ship owner would require his vessel to have at the commencement of a voyage, having regard to all possible circumstances. And the Marine Insurance Act s 39 4 provides that "a ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the adventure insured.
In the Hong Kong case, the issue was not whether the unseaworthiness was "serious" or "minor"; rather the question was whether the undoubtedly serious unseaworthiness had had an effect sufficiently grave to allow the charterer to repudiate. The Hong Kong Fir decision was met with some alarm in the shipping world, where certainty is crucial. The problem was the delay element; one had to "wait and see" the effect of the breach. The enormous costs involved in chartering mean that parties cannot afford to leisurely loiter, whilst pondering the consequences of the breach. Soon after, in The Mihailis Angelos  1 QB , it was held the impossibility of the ship owner to meet the "expected ready to load" date, ipso facto entitled the charterer to repudiate for anticipatory breach of condition.
The charterer was relieved to be able to cancel, as his proposed cargo of apatite had not materialized PS. Lord Denning used the word "warranty" in a very different way. Therefore the defendants are liable for wrongful repudiation. Here we can apply the in nominate term approach.
Rather than seeking to classify the term itself as a condition or warranty, the court should look to the effect of the breach and ask if the breach has substantially deprived the innocent party of the whole benefit of the contract. Only where this is answered affirmatively is it to be a breach of condition. Differentiate tort liability with contractual liability. Winfield defined tortuous liability as follows: 'Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is repressible by an action for un liquidated damages' The main purpose served by the definition is to distinguish the law of torts from other branch of the law and we now examine the main area of difference between the law of tort and the law of contract.
A contractual obligation differs in nature from a delictual obligation in three aspects. Firstly contractual obligations arise only from agreement between parties. However, delictual obligations are contractual obligations that are imposed by law on the party bound. Secondly, duties arising from contract are owed to the parties to the contract or their assignees , whereas delictual obligations are owed to a large and indeterminate class of persons.
Thirdly, a delictual obligation imposes negative duties, while a contractual obligation may impose positive or negative duties. According to Winfield one distinction between the law of tort and the law of contract is that the scope of the rights and duties of parties in the former is wider than in the latter.
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In case of torts and duties are imposed by law and are owed to persons in general while in the case of contracts the duty is created by prior consent and agreement by the parties and is owed by one party to the other. However, such a general statement must necessarily be qualified in some respects.
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There are several instances where the prior consent of the defendant is a relevant factor in cases of tortuous liability. Under the English occupiers Liability Act of , a distinction is drawn between the duty owed by an occupier to a trespasser and that owed by him to a visitor whom he has permitted to enter his premises. Conversely, in the law of contracts the increased use of standard form contracts and 'implied terms' which the law deems the parties to have agreed to, has to a great extent eroded the true freedom of the parties to make independent decisions regarding the terms of such contracts.
Therefore, the parties may find themselves bound by terms imposed on them by the law rather than by prior agreement between them. However, we could argue on the other hand that no person is bound by a contract against his will, may find himself subject to terms imposed by the law rather than the agreed terms of the contract alone.
Breaches of Contracts: Fulfilling the Elements of a Contract
We could also argue that in spite of the increased use of standard of the contract is still determined by agreement between the parties. For example, the question whether A delivers to B or tons of fruit, depends on the terms of the contract agreed upon by them.
On the other hand, in the case of the occupiers Liability Act, while the occupier of premises will owe a duty of care to visitors whom he permitted to enter his premises, the extent of that duty is determined by the act in question. We can see a further distinction between the law of tort and contract when we examine the aims of these two branches of law. The primary aim of the law of tort is to grant redress or compensation to the victim of a tort for the harm caused to him. In other words the law seeks to put him as far as possible in the same position as if he had not suffered any damage or injury.
The aim of the law of contract on the other hand is to enforce the promises made by one party to the other, and in the event that this is not possible, to grant damages to the latter, or in other words put him as far as possible in the same position as if the contract had been performed. However, this distinction too has been somewhat blurred in recent times and it is now possible for a plaintiff to bring an action in both tort and contract on the same facts.
In the law of contract the rule that a promise is not legally binding without either consideration or the formality of a seal has been relaxed in many instances and in the area of tort several cases have held that a negligent defendant is liable even though he has not caused damage to the plaintiff by any positive act [Rose v Caunters where a solicitor who negligently executed a will was held liable to a disappointed legatee]. Explain negligence in law of tort with other concepts associating with it.
The concept of negligence or culpa is one of the foundations of the Aqulian acting on the Roman Dutch law.
In the English law however, it is of much later origin. The early common law concentrated almost entirely on intentional harm and moreover was more concentrated with the nature of the injury caused then with the basis of the defendant's conduct. It was during the 19th Century and the advent of the industrial revolution that the concept of negligence began to evolve as a basis of Tortious liability in the English law.
The development and expansion of industries and machinery and new modes of transport etc. The old stereotypes remedies available were insufficient to provide a solution to the problems which began to arise as a result of the social and economic upheaval which prevailed at the time, and the courts increasingly began to rely on the concept of negligence in confronting them. Further the basis of negligence being 'fault liability' it proved to be more advantageous to the proponents of industrialization than the concept of 'strict liability' or liability without fault.
The formation of a contract
However, the principle of negligence also resulted in expanding liability in other directions as for example, liability for nervous shock, negligent misstatements, omissions, etc. Negligence is not a tort in itself but a basis of liability in Tortious actions, it may be defined as' the failure to exercise towards another, in given circumstances that degree of care which the law considers that a reasonable man should exercise in these circumstances'.
In order to establish negligence as a Cause of Action under the law of TORTS, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.
The concept of negligence developed under English Law.
Elements Of Contract Essay - Words - BrightKite
Although English Common Law had long imposed liability for the wrongful acts of others, negligence did not emerge as an independent cause of action until the eighteenth century. Another important concept emerged at that time: legal liability for a failure to act. Originally liability for failing to act was imposed on those who undertook to perform some service and breached a promise to exercise care or skill in performing that service. Gradually the law began to imply a promise to exercise care or skill in the performance of certain services.
This promise to exercise care, whether express or implied, formed the origins of the modern concept of "duty. Although there have been important developments in negligence law, the basic concepts have remained the same since the eighteenth century.